Wednesday, December 17, 2008
New Jersey Supreme Court holds "super lawyer" ads are OK
The Legal Ethics Forum reports today that the the New Jersey Supreme Court has vacated on constitutional grounds an opinion of the state's Committee on Attorney Advertising that had concluded that ads touting a lawyer's listing in the Super Lawyers publication are "likely to create an unjustified expectation as to results" and, thus, impermissible. Here is a link to the Legal Ethics Forum story, which has links to other related posts.
Lawyers representing Guantanamo detainees, the new chic?
In a Wall Street Journal column titled "Gitmo Lawyers are the Latest in Radical Chic," William McGurn, laments the fact that so many private lawyers have stepped up to represent detainees while the Department of Justice lawyers are so overworked.
I am sorry, but anyone who claims that representing detainees is "chic" should read Jesselyn Radack's article "A Blacklist real face" published in The National Law Journal, February 19, 2007, in which se recounts her experience as a Gitmo lawyer and in which she concludes:
"I was blacklisted for years. Navy judge advocate general lawyer Charles Swift won a favorable ruling from the U.S. Supreme Court on behalf of a Guantánamo detainee he was appointed to represent, then was denied a promotion that ended his military career. The government threatened to investigate civilian attorney Clive Stafford Smith, making the wild accusation that he suggested that his Guantánamo client commit suicide. And DOJ is forcing out several U.S. attorneys from their jobs for political reasons. I am Exhibit 1 as to what can happen when the government paints the 500 volunteer Guantánamo lawyers, and the firms that employ them, as somehow supporting terrorism."
I am sorry, but anyone who claims that representing detainees is "chic" should read Jesselyn Radack's article "A Blacklist real face" published in The National Law Journal, February 19, 2007, in which se recounts her experience as a Gitmo lawyer and in which she concludes:
"I was blacklisted for years. Navy judge advocate general lawyer Charles Swift won a favorable ruling from the U.S. Supreme Court on behalf of a Guantánamo detainee he was appointed to represent, then was denied a promotion that ended his military career. The government threatened to investigate civilian attorney Clive Stafford Smith, making the wild accusation that he suggested that his Guantánamo client commit suicide. And DOJ is forcing out several U.S. attorneys from their jobs for political reasons. I am Exhibit 1 as to what can happen when the government paints the 500 volunteer Guantánamo lawyers, and the firms that employ them, as somehow supporting terrorism."
Thursday, December 11, 2008
Pro Bono
Perhaps as a response to arguments against mandatory pro bono, in 2006 the Illinois Supreme Court amended Rule 756 of the Rules on Admission and Discipline of Attorneys to require attorneys to report the amount of pro bono work performed every year. Attorneys are not obligated to perform pro bono work, but if they do, they are obligated to report it. This approach was first adopted in 1992 by the Florida Supreme Court and is now also used in Maryland, Nevada and Mississippi. The idea behind this approach is the hope that attorneys will get more involved in pro bono activities when they see that others are. It seemed to work very well during the first 8 years in Florida where the plan resulted in an initial dramatic increase in participation in pro bono services and in an apparent higher level of commitment by lawyers to pro bono work. See, Pro Bono in 2000, The Nat’l Law J., December 25, 2000, p. A-11.
Unfortunately, things have apparently remained the same since then. A new study commissioned by the Florida Supreme Court shows that the number of Florida attorneys donating their time to pro bono work has remained stagnant since 2000. During the same period, Florida pro bono programs such as legal aid reported a 30% decline in the number of attorneys who volunteered through their agencies. See the full story here.
I have always argued that the benefits of the reporting requirement are lost unless there is a also an element of publicity attached to it. Requiring lawyers to report will not result in more commitment to pro bono unless the results are publicized and celebrated by the bar associations. I hope the Illinois project generates more attention to the need for lawyers to provide pro bono services, or at least to contribute to organizations that do.
Unfortunately, things have apparently remained the same since then. A new study commissioned by the Florida Supreme Court shows that the number of Florida attorneys donating their time to pro bono work has remained stagnant since 2000. During the same period, Florida pro bono programs such as legal aid reported a 30% decline in the number of attorneys who volunteered through their agencies. See the full story here.
I have always argued that the benefits of the reporting requirement are lost unless there is a also an element of publicity attached to it. Requiring lawyers to report will not result in more commitment to pro bono unless the results are publicized and celebrated by the bar associations. I hope the Illinois project generates more attention to the need for lawyers to provide pro bono services, or at least to contribute to organizations that do.
Wednesday, December 10, 2008
Misconduct, or, in this case, not misconduct of the day
Mike Frisch of the Legal Profession Blog reports today that the Arizona Disciplinary Commission, by a 5-4 vote, approved the dismissal of ethics charges in a case where the attorney had (1) gone to a police station for an interview wearing a t-shirt that declared "Let the f***ing begin" (2) called a prosecutor an "unethical piece of trash" and (3) arranged for a subscription to Modern Drunkard magazine to be sent to a prosecutor's office due to his concern about the quality of the magazine choices in the waiting room. The hearing officer found the behavior inappropriate but not in violation of ethics rules. The dissenters would have imposed an informal reprimand.
Tuesday, December 9, 2008
Miconduct of the day
The ABAJournal.com reports on two cases today:
1. A Florida attorney who worked as a title agent has been convicted by a federal jury in Fort Lauderdale of preparing real estate closing documents that helped another man defraud lenders. Full story available here.
2. A Massachusetts defense lawyer is accused of calling witnesses against his clients and telling them the district attorney didn’t need their testimony. Full story available here.
1. A Florida attorney who worked as a title agent has been convicted by a federal jury in Fort Lauderdale of preparing real estate closing documents that helped another man defraud lenders. Full story available here.
2. A Massachusetts defense lawyer is accused of calling witnesses against his clients and telling them the district attorney didn’t need their testimony. Full story available here.
Thursday, December 4, 2008
Should attorney have to pay restituion after filing for bankruptcy?
Here is an interesting case decided today by the Ohio Supreme Court. A lawyer accepted a case he was clearly not qualified to handle. He was incompetent in handling it and given his failure to adequately respond to motions for summary judgment, the case was dismissed. The client then sued for legal malpractice and obtained judgment in his favor. However, the client was unable to collect on the judgment because the lawyer had failed to notify his insurance carrier, who then asserted its right to deny coverage. The client was also unable to collect from the lawyer because the lawyer avoided the judgment by declaring bankruptcy and securing a discharge.
The Ohio Supreme Court found that the lawyer acted out of self-interest, harmed a vulnerable client, and failed to make restitution. It recognized that a number of courts in other jurisdictions have ordered restitution to a client as a condition of a disciplined attorney’s reinstatement to practice, notwithstanding a discharge in bankruptcy of the underlying debt. However, it also noted an older case in Ohio which held that the bankruptcy discharge prevents the court from ordering restitution. Following this precendent, the Court concludes:
"Ordering respondent to pay restitution would further respondent’s rehabilitation, . . . but . . . we do not order it here. To safeguard the public and deter other unseasoned lawyers from unsupervised practice in areas in which they have insufficient legal expertise, we suspend respondent from the practice of law in Ohio for two years and order a stay of the last 18 months on the condition that respondent completes an 18-month probation, monitored by an [appointed] attorney . . . During the probation, respondent shall, in addition to the other requirements of that rule, accept only cases within his experience level or arrange for competent co-counsel."
In a separate opinion, one of the Justices argued the precendent case is wrong and that the attorney should be required to pay restitution as a condition to reinstating his law license. Finally, in another separate opinion, another Justice argued for stricter penalties. The full text of the (not yet officially published) opinion is available here.
The Ohio Supreme Court found that the lawyer acted out of self-interest, harmed a vulnerable client, and failed to make restitution. It recognized that a number of courts in other jurisdictions have ordered restitution to a client as a condition of a disciplined attorney’s reinstatement to practice, notwithstanding a discharge in bankruptcy of the underlying debt. However, it also noted an older case in Ohio which held that the bankruptcy discharge prevents the court from ordering restitution. Following this precendent, the Court concludes:
"Ordering respondent to pay restitution would further respondent’s rehabilitation, . . . but . . . we do not order it here. To safeguard the public and deter other unseasoned lawyers from unsupervised practice in areas in which they have insufficient legal expertise, we suspend respondent from the practice of law in Ohio for two years and order a stay of the last 18 months on the condition that respondent completes an 18-month probation, monitored by an [appointed] attorney . . . During the probation, respondent shall, in addition to the other requirements of that rule, accept only cases within his experience level or arrange for competent co-counsel."
In a separate opinion, one of the Justices argued the precendent case is wrong and that the attorney should be required to pay restitution as a condition to reinstating his law license. Finally, in another separate opinion, another Justice argued for stricter penalties. The full text of the (not yet officially published) opinion is available here.
Sanction For Prosecutorial Misconduct
A hearing board in Illinois has recommended a 30 day suspension of the State's Attorney of Wayne County for ethical violations in a criminal prosecution. The full text of the recommendation, including a summary of the hearing, is available here. The board found:
In this case, the Respondent not only failed to disclose information favorable to the defendant in pre-trial discovery, but he also failed to correct false testimony during trial, and then he made false statements in closing argument. The Respondent's misconduct pertained to the credibility of a crucial witness and, thus, deprived the defendant of a fair trial. The Respondent made it appear to the jury that Brian Asher had no self serving motive to testify on behalf of the State when, in fact, Asher had entered into an agreement with and had received a benefit from the State. Asher was permitted to pled guilty to a Class 4 felony, and a Class 1 felony charge against him was dismissed; Asher's sentencing hearing was continued until after Sutton's trial and Asher was to receive a maximum sentence of no greater than three years if he cooperated with law enforcement officials, which included the Respondent; and Asher was released on his own recognizance following his guilty plea and agreement to cooperate. In fact, at Asher's sentencing hearing, the Respondent recommended a sentence of "30 months of probation," and pointed out that Asher had cooperated by testifying at Sutton's trial. The jury was entitled to know about "any understanding or agreement" the Respondent had with Asher but the Respondent's conduct kept this important information from the jury and improperly enhanced the credibility of Asher. One board member favored a censure rather than suspension.
Originally posted by Mike Frisch on Legal Profession Blog
In this case, the Respondent not only failed to disclose information favorable to the defendant in pre-trial discovery, but he also failed to correct false testimony during trial, and then he made false statements in closing argument. The Respondent's misconduct pertained to the credibility of a crucial witness and, thus, deprived the defendant of a fair trial. The Respondent made it appear to the jury that Brian Asher had no self serving motive to testify on behalf of the State when, in fact, Asher had entered into an agreement with and had received a benefit from the State. Asher was permitted to pled guilty to a Class 4 felony, and a Class 1 felony charge against him was dismissed; Asher's sentencing hearing was continued until after Sutton's trial and Asher was to receive a maximum sentence of no greater than three years if he cooperated with law enforcement officials, which included the Respondent; and Asher was released on his own recognizance following his guilty plea and agreement to cooperate. In fact, at Asher's sentencing hearing, the Respondent recommended a sentence of "30 months of probation," and pointed out that Asher had cooperated by testifying at Sutton's trial. The jury was entitled to know about "any understanding or agreement" the Respondent had with Asher but the Respondent's conduct kept this important information from the jury and improperly enhanced the credibility of Asher. One board member favored a censure rather than suspension.
Originally posted by Mike Frisch on Legal Profession Blog
Tuesday, December 2, 2008
New ABA Ethics Opinion about law firms' ethics counsel
A new American Bar Association ethics opinion issued today explores the growing trend of law firms to designate a member or a committee as an ethics consultant for members of the firm, and discusses how lawyers may resolve conflicts between their confidentiality obligations and their potential obligation to report lawyer misconduct. This press release provides a summary of the opinion. The full text of the opinion is available here.
New FDIC Rule Averts IOLTA Trouble
Marcia Coyle of the National Law Journal reports:
The Federal Deposit Insurance Corp. has announced that, effective immediately, client funds deposited in Interest on Lawyer Trust Accounts -- regardless of amount -- are eligible for full deposit insurance coverage under the Temporary Liquidity Guarantee Program through Dec. 31, 2009.
The American Bar Association, state and federal lawmakers, community and consumer groups, law firms and individual lawyers had mounted a nationwide campaign to persuade the FDIC to include IOLTA funds in the expanded insurance program. . . . .
ABA President H. Thomas Wells Jr. said that if the FDIC had failed to expand full coverage for IOLTA, lawyers would have had to consider abandoning IOLTA for fully insured, noninterest-bearing accounts or moving IOLTA funds from community banks to the larger "too big to fail" banks. "Abandoning IOLTA would have been catastrophic for IOLTA programs in all 50 states, which provide funding for legal aid for the poor," said Wells. "Moving the accounts to larger banks would have defeated the FDIC's purpose in creating the TLGP."
See the full story here.
The Federal Deposit Insurance Corp. has announced that, effective immediately, client funds deposited in Interest on Lawyer Trust Accounts -- regardless of amount -- are eligible for full deposit insurance coverage under the Temporary Liquidity Guarantee Program through Dec. 31, 2009.
The American Bar Association, state and federal lawmakers, community and consumer groups, law firms and individual lawyers had mounted a nationwide campaign to persuade the FDIC to include IOLTA funds in the expanded insurance program. . . . .
ABA President H. Thomas Wells Jr. said that if the FDIC had failed to expand full coverage for IOLTA, lawyers would have had to consider abandoning IOLTA for fully insured, noninterest-bearing accounts or moving IOLTA funds from community banks to the larger "too big to fail" banks. "Abandoning IOLTA would have been catastrophic for IOLTA programs in all 50 states, which provide funding for legal aid for the poor," said Wells. "Moving the accounts to larger banks would have defeated the FDIC's purpose in creating the TLGP."
See the full story here.
Former Detroit Mayor fights to keep his law license
Ex-Detroit Mayor Kwame Kilpatrick is fighting to remain a lawyer from behind bars. The National Law Journal reports that one of Kilpatrick's attorneys filed papers Monday with the Michigan Attorney Discipline Board, asking it to set aside a judge's order revoking Kilpatrick's law license. See the full story here.
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